ADR scholar and law professor Michael Moffitt has rightly lamented the lack of meaningful guidance that professional rules of conduct for mediators provide the practitioner. This is especially so when more than one ethical duty is at stake, since codes of conduct provide no instruction on how best to balance one ethical duty against another.

A case from Pennsylvania demonstrates the challenges real-life issues raise. The York Daily Record reports on the controversy generated by the selection of a neutral to mediate a land seizure dispute between county commissioners and land owners. The mediator had served as re-election campaign manager for the president commissioner, who had voted in favor of the land owners. All parties were aware of the mediator’s ties, yet selected him because of his reputation for honesty as the best person to help them settle their differences. Meanwhile, some members of the public are not pleased by the decision.

It’s a real-life case that pits two ethical duties against each other: party self-determination on the one hand, and on the other, the duty to identify, disclose, and avoid conflicts of interest.

If it were you, what would you have done?

Here’s a follow up to last week’s post about the American Bar Association ethics opinion distinguishing between “puffing” on the one hand and “false statements of material fact” on the other in caucused mediations, and which bestowed its blessing upon the former but not the latter.

This week’s edition of Blawg Review links to a post on the Psychology of Compliance & Due Diligence Law blog about a new book for the legal profession, Lawyers’ Poker : 52 Lessons that Lawyers Can Learn from Card Players.

Consider this from the book’s description on Amazon.com (and negotiators, be sure to note the zero-sum imagery):

Great poker players are master tacticians. Not only do they calculate odds with lightning speed and astonishing precision, but they also cunningly anticipate and manipulate the actions of their adversaries. In short, they boast skills that every lawyer can envy. This highly entertaining work might best be summed up as “better lawyering through poker.” Steven Lubet shows exactly how the tactics of the poker table can be adapted to litigation, negotiation, and virtually every aspect of law practice. In a series of engaging and informative lessons, Lubet describes concepts like “betting for value,” “slow playing,” and “reverse bluffing,” and explains how they can be used by lawyers to win their cases. The best card players, like the best lawyers, have a knack for getting their adversaries to react exactly as they want, and that talent separates the winners from the losers.

When I consider the preceding passage together with the recent ABA ethics opinion, some questions for lawyers, negotiators, and mediators come readily to mind.

Let me say first that as someone who enjoys a good card game (and in fact married my husband in Las Vegas), I have nothing against poker, cards, gambling, winning, losing, or even using those analogies in describing litigation tactics or outcomes. In fact, gambling metaphors lend themselves very nicely to depicting the risks inherent in litigation–it’s the leverage that mediators use when we urge parties to weigh their alternatives.

But should we attorneys and negotiators rejoice to hear these metaphors applied not only to litigation but “virtually every aspect of law practice” including “negotiation”? Are we truly supposed to believe that skill in “manipulating the actions of their adversaries” is a virtue that “every lawyer can envy”?

More to the point, do we really want to be comparing ourselves to card sharks and gamblers when public opinion of lawyers has never been so low? (Although, ironically, just ask anyone what qualities they would wish for in the attorney that represents them, and most people would answer emphatically that among those qualities would be the ability to “cunningly anticipate and manipulate the actions of their adversaries”. But that’s a post for another time.)

As for mediators, if mediation is, as we like to say, “assisted negotiation“, is this the kind of negotiation we want to be assisting? What does it do to public confidence in mediation if we allow parties to “puff”, bluff, and manipulate their way to settlement, even if it does have the ABA’s seal of approval? We still have a responsibility to the process, to our profession, and to ourselves.

Otherwise, in the end, everyone loses. And is that a gamble mediators should be willing to take?

Mediators should be aware that the American Bar Association has apparently given its stamp of approval to the practice of “puffing” in negotiation, including caucused mediations:

Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” are ordinarily not considered “false statements of material fact” within the meaning of the Model Rules.

Frankly this is way too nuanced for me, and I don’t think the ABA has done mediators and lawyers any favors with this “clarification”. Puffing good, lying bad–you be the judge.

You can download “Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation” in PDF here.

(Thanks to Knight on Family Law for the link.)

Technorati tags: Lawyers, mediation, negotiation